AB v CD

In a Hague Convention return application, the court must determine whether return would expose the child to a grave risk of physical or psychological harm or an intolerable situation. The assessment is prospective and focuses on the circumstances after return, including available protective measures.

The court may evaluate disputed allegations within the limits of the summary process. It need not assume that allegations are true where the evidence enables it to assess or discount the alleged risk. Separation from a primary carer can in principle engage Article 13(b), but the question remains whether the child faces a grave risk, having regard to arrangements for continuing contact. A child’s objections may be considered only where the child has attained the necessary age and maturity.

The father applied for the return of his five-and-a-half-year-old daughter to Belgium under the 1980 Hague Convention. The mother accepted that the child was habitually resident in Belgium and that the retention was wrongful, but opposed return on the grounds of the child’s objections and Article 13(b).

The mother said that she would not return to Belgium. She relied on alleged abusive conduct, her mental health, immigration uncertainty, the child’s relationship with her as primary carer, and concerns about the father’s care. The central questions were whether the child’s objections justified refusal of return and whether return, with proposed protective measures and arrangements for contact, would expose her to a grave risk of an intolerable situation.

1. Return ordered. The child’s objections did not justify refusal of return. Although she objected to living in Brussels, the court accepted the CAFCASS evidence that she lacked the maturity to make decisions about her future. Even if her views were taken into account, they had been influenced by the mother and reflected a perceived choice between living with either parent.
2. Article 13(b) requires the court to decide whether return would create a grave risk of an intolerable situation in the future. The burden was on the mother, and the ordinary balance of probabilities applied. The assessment was necessarily summary, but the court could evaluate the substance and credibility of disputed allegations where necessary to determine risk.
3. The mother’s asserted risk of psychiatric breakdown was not established. The evidence showed stress and anxiety, but did not demonstrate a grave risk of breakdown or destabilised parenting. In any event, because the mother had chosen not to return, the alleged risk arising from her living in Belgium was not a risk faced by the child.
4. The allegations of abuse, unsuitable living conditions, school difficulties and travel anxiety did not establish a grave risk of an intolerable situation. Any grave risk from alleged physical or emotional abuse was sufficiently mitigated by the father’s proposed protective measures. Belgium offered adequate safeguards.
5. Separation from the child’s primary carer could in principle found an Article 13(b) defence. Here, however, the risk was sufficiently mitigated by arrangements for substantial contact with the mother, including at least two weekends each month in London. The child was resilient, had experience of care from both parents, and the father was able to care for her.
6. The late allegation concerning inappropriate boundaries and personal care was unsupported by the evidence and was rejected. The court therefore concluded that neither the child’s objections nor Article 13(b) justified refusal of return. A return order was made with undertakings, including arrangements for contact and an undertaking not to jeopardise the mother’s immigration status. A two-week period before return was permitted.